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Friday, June 29, 2012

Roberts Rules: United States Supreme Court Upholds Obamacare 5-4 Making USA the Last Industrialized Nation of Western Civilization to Provide National Health Care: Radical Elements on the Court Are Defeated

We bow our hat to U.S. Supreme Court Chief Justice John G. Roberts Jr. for the first judicial opinion of his judging realm worthy of his lofty title. See Roberts Rules for Order by Hendrik Hertzberg at The New Yorker (the image below is linked from the Wikipedia):

"[A]lmost all of us stand to benefit from making America a kinder and more decent society....
[T]he law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society."

The decisive vote in the case was cast -- surprisingly to this observer -- by Chief Justice John G. Roberts Jr., while the 4 dissenters were predictably "the lost triumvirate" of Justices Scalia, Alito and Thomas, lost in past centuries, to be exact, but here inexplicably joined by traditional "swing justice" Anthony M. Kennedy, who appears to have derailed in midstream.

How could Justice Kennedy possibly be so fully on the wrong side of the law in this landmark decision affecting the good health of almost all Americans in this, the 21st century? When the chips were down, Kennedy failed.

The normally prudent Kennedy must lack any real conception of the massive domestic chaos and international loss of face that would have resulted from the defeat of the Affordable Care Act.

As Erwin Chemerinsky writes at SCOTUS blog in his excellent analysis of the court decision and majority opinion:

"Since 1937, no major federal social welfare law has been declared
unconstitutional as exceeding the scope of Congress’s authority....

If the Supreme Court had taken the approach urged by the four
dissenters and invalidated the entire Act, it would have been something
that had not been seen since the Supreme Court struck down key pieces of
the New Deal in the 1930s.

Nor from the perspective of constitutional doctrine is the Court’s
reasoning surprising. The Supreme Court found that the minimum coverage
requirement – the so-called individual mandate – is essentially a
tax. Individuals must either have health insurance or pay a tax. In
every way, it functions as a tax; it is collected by the Internal
Revenue Service and is a small percentage of income or a flat rate. Since 1937, not one federal tax has been declared unconstitutional.

The result was best forecast by a question asked by Justice Sonia
Sotomayor at the oral argument. She asked the attorney representing the
states challenging the law, Paul Clement, why couldn’t Congress raise
everyone’s taxes to pay for health care and then give an exemption to
those who already have health care? Of course, Congress could do this
and that is exactly how the individual mandate functions. It is true
that President Obama never called it a “tax,” but many members of
Congress did, and labels certainly are not decisive in constitutional
law."